George Sterba, Jr. (plaintiff), filed suit for mandamus against William L. Blaser, Director of the Illinois Environmental Protection Agency, together with other officials of the State of Illinois and the Illinois State Civil Service Commission (defendants). Plaintiff sought reinstatement to his position with the Agency, on the theory that he had been wrongfully dismissed without written charges and a hearing.

Defendants filed an amended motion to dismiss pursuant to section 48(1)(i) of the Civil Practice Act. This section permits the filing of a motion to dismiss the action for the reason "[t]hat the claim or demand asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand." (Ill. Rev. Stat. 1973, ch. 110, par. 48(1)(i).) Defendants' theory, as asserted in their amended motion, was that plaintiff was discharged prior to completion of the required probationary period so that he never attained full civil service status.

After a hearing, the trial court entered an order denying the motion of defendants to dismiss the action. Defendants elected to stand upon their motion. The court granted the relief prayed, reinstatement of plaintiff to his position with the Environmental Protection Agency. Defendants have appealed.

The findings and judgment of the trial court were based upon plaintiff's complaint, the amended motion of defendants to dismiss, supported by an affidavit, and various exhibits appended thereto and an amended response filed to the amended motion by plaintiff, supported by an affidavit made by plaintiff, and various exhibits. The following facts appear from these various documents. On August 25, 1971, plaintiff wrote to the Environmental Protection Agency applying for a civil service position. Plaintiff was interviewed by the Agency on September 4, 1971. Plaintiff was desirous of obtaining permanent, but not temporary, employment. On September 14, 1971, plaintiff took the civil service examination for Environmental Protection Engineer IV. About September 21, 1971, plaintiff was notified in writing by the Department of Personnel that he had passed the examination with final grade of A (described as "excellent") and that his "name has been placed on the eligible list for this title."

On October 8, 1971, plaintiff accepted in writing a written offer of employment to the position he sought. This offer fixed a reporting date of November 1, 1971, and stated the salary plaintiff was to receive. Plaintiff actually did commence work on November 1, 1971. On May 10, 1972, plaintiff received a written notice from the Department of Personnel separating him from the service. This document was marked "Separation  Probationary Discharge". The effective date was stated as May 11, 1972. Typed thereon is the following statement:

"George Sterba has consistently performed at an unacceptably low level of productivity. He has not been able to adjust his work attitude and procedures to match the Agency's policy particularly in the area of communications with facilities under surveillance."

According to these various documents, plaintiff's employment commenced November 1, 1971. His probationary period of six months therefore expired on May 1, 1972. His notice of separation was received by plaintiff on May 10, 1972, effective as of May 11, 1972. Thus all of the information received by plaintiff indicates that his discharge did not occur until after the expiration of his probationary period.

On May 19, 1972, plaintiff's counsel served written notice and demand upon each and all of the defendants setting out the facts from his point of view and also his contention that his probationary period expired at the close of business on April 30, 1972, so that the attempted probationary discharge effective May 11, 1972, was illegal and void. The notice also contained an alternative request that proper charges be filed against plaintiff and that he be given a hearing before the Commission in accordance with the statute. (Ill. Rev. Stat. 1973, ch. 127, par. 63b111.) The Commission sent a response to plaintiff's counsel which denied his request for hearing on the merits of the discharge because "his personal *fn1 records" revealed that plaintiff had not completed the probationary period and that such a hearing could be granted by the Commission only if plaintiff had "attained certified status."

The material supplied by defendants shows that on November 10, 1971, effective as of November 1, 1971, the Illinois Department of Personnel issued a personnel action report for plaintiff's "Emergency Appointment" to the position of Environmental Protection Engineer IV. In the space reserved for remarks, the document stated, "Due to work-load and work schedule while employees are on vacation." As shown, no such qualification or condition was contained upon the offer of employment to plaintiff effective November 1, 1971. It does not appear that the contents of this personnel record were ever disclosed to plaintiff or that he had any knowledge thereof until after the filing of this suit.

The next personnel report which appears was approved November 19, 1971, effective November 11, 1971. It purports to show a change of plaintiff's status from his alleged emergency position with the designation "Separation  Termination Non-Certified". It does not appear that plaintiff was made aware of this document or the contents thereof until after the filing of this suit. In his affidavit plaintiff stated specifically that at no time prior to or during his service was he informed in any fashion by any representative of the State that he had been appointed or employed as an emergency, temporary, or provisional employee. The affidavit also stated that when he commenced his employment on November 1, 1971, to the best of his recollection, none of the environmental engineers employed in the Chicago office were on vacation and that upon starting such employment he did not take the place or assume the duties of any other engineer.

A list of eligibles maintained by the Department of Personnel shows that plaintiff was second upon the eligible list. The record shows that the one person ahead of plaintiff rejected the offer of employment on October 29, 1971. The listing of eligibles shows selection of plaintiff for the position on November 12, 1971. Again, there is no proof that plaintiff was ever advised of this date as it appears on the document. The offer to plaintiff of employment commencing November 1, 1971, contains no such statement. The personnel records also show a "Probationary Appointment" of plaintiff to his position as Engineer IV effective November 12, 1971. The contents of this document were not disclosed to plaintiff before filing of this suit.

In this court, defendants contend that plaintiff was properly denied a hearing by the Civil Service Commission; this denial of a hearing was a final administrative decision regarding which an exclusive method of review is created by the Administrative Review Act so that mandamus was not a proper remedy. Also defendants alternatively contend that, if mandamus was the proper remedy, the writ should only have directed the Commission to give plaintiff a hearing regarding his discharge. In response, plaintiff urges that, since he completed his probationary period of six months on April 30, 1972, his purported discharge as a probationer, effective May 11, 1972, was illegal. Plaintiff urges that the writ of mandamus was correctly issued because failure of the Commission to grant a hearing was not a final administrative decision subject to review under the Administrative Review Act; since there was no hearing or proceedings before the Commission, the Act was not applicable; having failed to raise the issue of availability of mandamus in the trial court, defendants cannot raise the issue on appeal and, finally, that the attempted discharge of plaintiff as a probationer violated the statute so that mandamus was properly awarded to compel reinstatement.

In our view, resolution of this controversy requires an analysis slightly different than that suggested by the contentions of the parties. The decisive issue here is the status of plaintiff at the time of his discharge. Examination of this question must commence with ...

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